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COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Adam C. Thiessen Law Office of Adam C. Thiessen TX SBN: 24069185 SDTX Fed ID No: 3254681 733 E 12 th ½ St Houston, TX 77007 (832) 577-7664 [email protected] Attorneys for Plaintiff OUTLAW LABORATORY, LP UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS OUTLAW LABORATORY, LP a Texas Limited Partnership, Plaintiff, vs. EASTLINE ENTERPRISES INC., a Texas Corporation, IHAK, INC., a Texas Corporation, HNJ ENTERPRISES, INC., a Texas Corporation, DAHERI ENTERPRISES, INC., a Texas Corporation, STOP N GONE FOOD STORE INC, a Texas Corporation, CULLEN TEXACO, INC., a Texas Corporation, IHU INC., a Texas Corporation, SUKHANI PETROLEUM, LLC, a Texas Limited Liability Company, DAWANI STORES, INC., a Texas Corporation, BROADVISION, LLC, a Texas Limited Liability Company, GESSNER TANNER TEXACO, INC., a Texas Corporation, ADICO ENTERPRISES, INC., a Texas Corporation, SAFA PROPERTY INVESTMENT, INC, a Texas CASE NO. COMPLAINT FOR: 1) FALSE ADVERTISING (Section 43(a)(1)(B) of the Lanham Act) [REQUEST FOR A JURY TRIAL] Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 1 of 18

Transcript of 1 Adam C. Thiessen - supplementlitigation.org · 5000, Rhino 8 Platinum 8000, Rhino Big Horn 3000,...

COMPLAINT

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Adam C. Thiessen Law Office of Adam C. Thiessen TX SBN: 24069185 SDTX Fed ID No: 3254681 733 E 12th ½ St Houston, TX 77007 (832) 577-7664 [email protected] Attorneys for Plaintiff OUTLAW LABORATORY, LP

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

OUTLAW LABORATORY, LP a Texas Limited Partnership, Plaintiff, vs. EASTLINE ENTERPRISES INC., a Texas Corporation, IHAK, INC., a Texas Corporation, HNJ ENTERPRISES, INC., a Texas Corporation, DAHERI ENTERPRISES, INC., a Texas Corporation, STOP N GONE FOOD STORE INC, a Texas Corporation, CULLEN TEXACO, INC., a Texas Corporation, IHU INC., a Texas Corporation, SUKHANI PETROLEUM, LLC, a Texas Limited Liability Company, DAWANI STORES, INC., a Texas Corporation, BROADVISION, LLC, a Texas Limited Liability Company, GESSNER TANNER TEXACO, INC., a Texas Corporation, ADICO ENTERPRISES, INC., a Texas Corporation, SAFA PROPERTY INVESTMENT, INC, a Texas

CASE NO.

COMPLAINT FOR:

1) FALSE ADVERTISING (Section 43(a)(1)(B) of the Lanham Act)

[REQUEST FOR A JURY TRIAL]

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 1 of 18

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Corporation, F & Z ENTERPRISES INC., a Texas Corporation, BELLFORT6920, LLC, a Texas Limited Liability Company, and DOES 1-100. Defendants.

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 2 of 18

COMPLAINT

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Plaintiff Outlaw Laboratory, LP, a Texas limited partnership (“OLP” or

“Plaintiff”), by and through its undersigned attorneys, submits this Complaint against

defendants, EASTLINE ENTERPRISES INC., a Texas Corporation,IHAK, INC., a

Texas Corporation, HNJ ENTERPRISES, INC., a Texas Corporation, DAHERI

ENTERPRISES, INC., a Texas Corporation, STOP N GONE FOOD STORE INC, a

Texas Corporation, CULLEN TEXACO, INC., a Texas Corporation, IHU INC., a Texas

Corporation, SUKHANI PETROLEUM, LLC, a Texas Limited Liability Company,

DAWANI STORES, INC., a Texas Corporation, BROADVISION, LLC, a Texas

Limited Liability Company, GESSNER TANNER TEXACO, INC., a Texas

Corporation, ADICO ENTERPRISES, INC., a Texas Corporation, SAFA PROPERTY

INVESTMENT, INC, a Texas Corporation, F & Z ENTERPRISES INC., a Texas

Corporation, BELLFORT6920, LLC, a Texas Limited Liability Company, and DOES 1-

100, inclusive (collectively, the “Defendants”), and in support thereof avers as follows:

INTRODUCTION

1. Defendants are engaged in a scheme to distribute and sell “male

enhancement” pills containing undisclosed pharmaceuticals to the general public.

Specifically, Defendants advertise and offer for sale various sexual enhancement

supplements, including but not limited to, Rhino 7 Platinum 3000, Rhino 7 Platinum

5000, Rhino 8 Platinum 8000, Rhino Big Horn 3000, Rhino 12 Titanium 6000, Rhino 69

and Boss-Rhino Gold X-tra Strength (collectively, the “Rhino Products”). All of the

Rhino Products have been the subject of laboratory testing and public announcements by

the FDA, which found these products to contain hidden drug ingredients such as

sildenafil (a prescription drug), desmethyl carbodenafil (an analogue of sildenafil),

dapoxetine (an unapproved anti-depressant drug) and tadalafil (a prescription drug),

among other dangerous undisclosed ingredients.

2. The Rhino Products are distributed by unknown suppliers (the “Supplier

Defendants”) through Shell-branded convenience stores which are named herein as co-

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 3 of 18

COMPLAINT

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defendants (the “Retail Defendants”). Plaintiff has sent letters to each of the Retail

Defendants making demands that they cease and desist from the illicit activity.

3. The Retail Defendants profit from the sale of the Rhino Products by

disseminating false statements including that the Rhino Products are “all natural,”

contain “no harmful synthetic chemicals,” “no prescription necessary,” and have limited

side effects. Aside from these patently false statements, Defendants have failed to

disclose the true nature of the Rhino Products to their customers, even though they are

aware of the dangerous secret ingredients.

4. Plaintiff is the manufacturer of competing products called “TriSteel” and

“TriSteel 8hour,” which are DSHEA-compliant male enhancement products made in the

USA and distributed for sale in all 50 US States.

5. The proliferation of mislabeled male enhancement pills has grown in the

shadows of intermittent enforcement of nutritional supplement laws. In this regard, the

FDA has issued several public notices regarding the use of sildenafil in over the counter

“male enhancement” supplements, but has only taken action on a handful of cases. The

Supplier Defendants and the Retail Defendants have taken full advantage of this

regulatory landscape, making significant profits selling dangerous products while openly

engaging in illicit activity.

6. Thus, Plaintiff’s only recourse is a civil action to protect the commercial

interests recognized by the Lanham Act and to expose the scheme detailed herein. As

such, Defendants have knowingly and materially participated in a false and misleading

advertising campaign to promote and sell the Rhino Products, giving consumers the false

impression that these products are safe when in reality, Defendants are well aware that

the Rhino Products contain hidden drug ingredients.

7. Defendants’ false and misleading statements and advertising pose extreme

health risks to consumers in at least two ways. First, Defendants mislead consumers into

believing that the advice and authorization of a licensed medical professional is not

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 4 of 18

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required to mitigate or avoid the potentially life-threatening side effects, drug interactions

and contraindications of the sildenafil and other drug ingredients hidden in the Rhino

Products. Second, by failing to inform consumers that the Rhino Products contain

sildenafil, consumers who know that their medical history and drug prescriptions make

sildenafil consumption dangerous may nevertheless consume the Rhino Products because

they are not made aware they contain sildenafil.

8. Defendants have knowingly and materially participated in false and

misleading marketing, advertising, dissemination and labeling to promote and sell the

Rhino Products, giving consumers the false impression that these products are safe and

natural dietary supplements when in reality Defendants know that the Rhino Products

contain synthetic prescription drug ingredients that pose serious health dangers when

taken without the supervision of a licensed medical professional.

9. Such false and misleading marketing and advertising is dangerous to

individual consumers and harmful to the dietary supplement industry as a whole.

Defendants have created an illegitimate marketplace of consumers seeking to enhance

their sexual performance but who are not informed, or who are misinformed, of the

serious dangers of using Defendants’ Rhino Products. Consumers of the Rhino Products

have little or no incentive to use natural, legitimate and safe sexual performance Rhino

Products, such as Plaintiff’s TriSteel or TriSteel 8hour, until they are harmed or

Defendants’ Rhino Products are taken off of the shelves. Defendants’ continuing false,

misleading, and deceptive practices have violated the Lanham Act and have unjustly

enriched Defendants at the expense of Plaintiff, and have harmed Plaintiff’s commercial

interests, including but not limited to, loss of revenue, disparagement and loss of

goodwill.

10. Among other things, this action seeks to enjoin Defendants from the

marketing and sale of any and all of the Rhino Products, disgorgement of Defendants’

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 5 of 18

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profits, treble damages, punitive damages and attorneys’ fees provided by the Lanham

Act.

11. Among other things, this action seeks to enjoin Defendants from the

marketing and sale of any and all of the Rhino Products, and pursue the full range of

damages available to it under

JURISDICTION AND VENUE

12. This Court has personal jurisdiction over Defendants because they have,

directly or through their intermediaries (including manufacturers, distributors, retailers,

and others), developed, licensed, manufactured, shipped, distributed, offered for sale,

sold, and advertised their products in the United States, the State of Texas, and this

county, including but not limited to, the Rhino Products. Defendants have purposefully

and voluntarily placed these products into the stream of commerce with the expectation

that they will be purchased in this district.

13. Venue is proper in this judicial district because a substantial amount of the

events described occurred in this district.

PARTIES

14. Plaintiff Outlaw Laboratory, LP is a Texas limited partnership organized

under the laws of the State of Texas.

15. Upon information and belief, defendant EASTLINE ENTERPRISES INC is

a Texas Corporation, which lists its Registered Agent as MUBASHIR KHAN at 1906

MAGNOLIA CREST, SUGAR LAND, TX 77478.

16. Upon information and belief, defendant IHAK, INC. is a Texas Corporation,

which lists its Registered Agent as HAKAKM A KHALEQ at 10611 HORSESHOE

BEND, HOUSTON, TX 77064.

17. Upon information and belief, defendant HNJ ENTERPRISES, INC is a

Texas Corporation, which lists as its Registered Agent as JEROLD JOHNSON at 10700

S MAIN ST STE A, HOUSTON, TX 77025.

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 6 of 18

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18. Upon information and belief, defendant DAHERI ENTERPRISES, INC. is a

Texas Corporation which lists its Registered Agent as MOHAMMED SIDDIQUE

DAHERI at 12703 VETERANS MEMORIAL #105, HOUSTON, TX 77014.

19. Upon information and belief, defendant STOP N GONE FOOD STORE

INC, is a Texas Corporation, which lists its Registered Agent as TIEN VAN NGUYEN

at 12850 SCARSDALE, HOUSTON, TX 77089.

20. Upon information and belief, defendant CULLEN TEXACO, INC., is a

Texas Corporation, which lists its Registered Agent as NICK CHALLA at 6310

MODESTO, HOUSTON, TX 77083.

21. Upon information and belief, defendant IHU INC. is a Texas Corporation,

which lists its Registered Agent as IRFAN IBRAHIM at 9894 BISSONNET ST STE

400, HOUSTON, TX 77036.

22. Upon information and belief, defendant SUKHANI PETROLEUM, LLC., is

a Texas Limited Liability Company, which lists its Registered Agent as MUKESH

MANSUKHANI at 8610 AIRPORT BLVD, HOUSTON, TX 77061.

23. Upon information and belief, defendant DAWANI STORES, INC., is a

Texas Corporation, which lists its Registered Agent as AMIR DAWANI at 14243

ASHMORE REEF COURT, SUGAR LAND, TX 77498.

24. Upon information and belief, defendant BROADVISION, LLC, is a Texas

Limited Liability Company, which lists its Registered Agent as ARIBAHEN PATEL at

5514 PARKSTONE COURT, SUGAR LAND, TX 77479.

25. Upon information and belief, defendant GESSNER TANNER TEXACO,

INC. is a Texas Corporation which lists its Registered Agent as KARIM K ALI at 5615

RICHMOND AVE STE 230, HOUSTON, TX 77057.

26. Upon information and belief, defendant ADICO ENTERPRISES INC. is a

Texas Corporation which lists its Registered Agent as MUSA A. ADI at 10106

KLECKLEY, HOUSTON, TX 77075.

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 7 of 18

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27. Upon information and belief, defendant SAFA PROPERTY

INVESTMENT, INC is a Texas Corporation, which lists its Registered Agent as ALI

BASHTAWI at 10521 GULF FWY, HOUSTON, TX 77034.

28. Upon information and belief, defendant F & Z ENTERPRISES INC. is a

Texas Corporation, which lists its Registered Agent as SAIYAD ALI at 6690 W.

AIRPORT BLVD, HOUSTON, TX 77035.

29. Upon information and belief, defendant BELLFORT6920, LLC is an Texas

Limited Liability Company, which lists its Registered Agent as DEEDAR ALI at 3803

ORCHARD LINKS DR, RICHMOND, TX 77407.

30. Plaintiff is ignorant of the true names and capacities of defendants sued

herein as Does 1- 10, inclusive, and therefore sued these defendants by such fictitious

names. Plaintiff will amend this Complaint to allege their true names and capacities

when ascertained. Plaintiff is informed and believes and thereon alleges that each of

these fictitiously named defendants is responsible in some manner for the occurrences

herein alleged, and that Plaintiff’s injuries as herein alleged were proximately caused by

the aforementioned defendants.

FACTUAL ALLEGATIONS

31. According to a recent public warning by the FDA, there is a growing trend

in the supplement industry of mislabeling “dietary supplements” that contain potentially

harmful hidden drugs and chemicals. Unscrupulous supplement manufacturers and

retailers market and advertise these products as enhancing sexual performance, weight

loss, and bodybuilding, and misrepresent their products as being “all natural.” Contrary

to their representations, these purported “dietary supplements” actually contain

potentially harmful hidden ingredients and drugs, and require a prescription from a

medical doctor for proper use. The FDA has approved sildenafil for treatment of erectile

dysfunction. However, because of known side effects, drug interactions and

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 8 of 18

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contraindications, the FDA has deemed sildenafil to be a prescription drug that can only

be administered under the supervision of a medical professional.

32. The serious side effects of sildenafil include, for example, priapism (i.e.,

prolonged penile erections leading to tissue death and potential permanent erectile

dysfunction), severe hypotension (i.e., low blood pressure), myocardial infarction (i.e.,

heart attack), ventricular arrhythmias, stroke, increased intraocular pressure (i.e.,

increased eye fluid pressure), anterior optic neuropathy (i.e., permanent optic nerve

damage), blurred vision, sudden hearing loss, and dizziness.

33. The serious negative drug interactions of sildenafil include, for example, (i)

interacting with alkyl nitrites and alpha-1 blockers to cause angina and life-threatening

hypotension, (ii) interacting with protease inhibitors to increase the incidence and

severity of side effects of sildenafil alone, and (iii) interacting with erythromycin and

cimetidine to cause prolonged plasma half-life levels.

34. In addition to these risks, contraindications of sildenafil include underlying

cardiovascular risk factors (such as recent heart surgery, stroke or heart attack) since

consumption of sildenafil by individuals with these conditions can greatly increase the

risk of heart attack.

35. Because of these dangerous side effects, drug interactions and

contraindications, the advice and authorization of appropriate licensed medical

professionals is absolutely crucial for the safe consumption of sildenafil. Without such

safeguards, the consequences can be dire; the sale of mislabeled sildenafil in similar

circumstances has led to multiple deaths reported in the media.

Defendants’ Scheme

36. The Supplier Defendants are wholesale suppliers and distributors of various

sexual enhancement supplements, which are often imported from China, rarely disclose

any manufacturer information on their packaging and contain hidden drug ingredients.

The Rhino Products are generally sold in single-pill form. The Supplier Defendants

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 9 of 18

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distribute the Rhino Products through a network of Retail Defendants, detailed herein,

who own and operate independent businesses selling the Rhino Products, disseminate

false claims about the Rhino Products, and profit from the sale of dangerous products to

consumers at a large markup on each pill.

37. The Rhino Products are high-margin products and as such are situated at or

near the checkout counter. The Rhino Products are all subject to FDA public

announcements regarding their illicit contents; however, the Retail Defendants still

participate in their sale, due to their profitability.

Defendants and The Rhino Products

38. Defendants market, advertise, disseminate and offer for sale various sexual

enhancement supplements, including but not limited to, Rhino 7 Platinum 3000, Rhino 7

Platinum 5000, Rhino 8 Platinum 8000, Rhino Big Horn 3000, Rhino 12 Titanium 6000,

Rhino 69 and Boss-Rhino Gold X-tra Strength (the “Rhino Products”).

39. Defendants make numerous false and misleading representations regarding

the Rhino Products. For example, and without limitation, Defendants mislabel the Rhino

Products as “all natural” “dietary supplements,” and advertise and promote such products

as containing “no chemicals,” “all natural herbal formula,” and “no prescription

necessary,” among other misrepresentations.

40. Contrary to Defendants’ representations, recent laboratory analyses by the

FDA and otherwise have confirmed that the Rhino Products unlawfully contain hidden

drug ingredients, such as sildenafil. Sildenafil is the active ingredient in the FDA-

approved prescription drug Viagra, which is used to treat erectile dysfunction. Thus, the

Rhino Products are not “dietary supplements” as a matter of law, and Defendants’

representations to the contrary are false and misleading for this reason alone.

41. Moreover, Defendants fail to disclose that the Rhino Products contain

prescription drug ingredients, such as sildenafil. The sale of products containing hidden

drug ingredients (without requiring a prescription and without informing consumers of

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 10 of 18

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the health and safety risks of these drugs) is unlawful and seriously endangers

consumers. In this regard, Defendants also fail to disclose any of the adverse health

consequences of taking PDE-5 Inhibitors, such as sildenafil, tadalafil and vardenafil.

According to the FDA, these undisclosed ingredients may interact with nitrates found in

some prescription drugs such as nitroglycerin and may lower blood pressure to dangerous

levels, among other negative side effects.

42. Defendants’ false and misleading advertising is harmful to the dietary

supplement industry as a whole and to individual consumers. Defendants have created

an illegitimate marketplace of consumers seeking to enhance their sexual performance,

but who are not informed (or misinformed) of the serious dangers of using the Rhino

Products.

43. Consequently, consumers of the Rhino Products have little or no incentive to

use other sexual performance Rhino Products, such as TriSteel, until they are injured or

the Rhino Products are taken off the shelves.

Defendants’ False Statements Regarding The Rhino Products

44. Upon information and belief, EASTLINE ENTERPRISES INC owns and

operates the retail location at 707 WAYSIDE DR., HOUSTON, TEXAS 77011, which

advertises and offers for sale various sexual enhancement supplements, including Rhino

7 Platinum 5000, Super Panther 7K,Triple Green.

45. Upon information and belief, IHAK, INC. owns and operates the retail

location at 9503 Westheimer Rd., Houston, Texas 77063, which advertises and offers for

sale various sexual enhancement supplements, including Rhino 7 Platinum 5000, Mamba

is Hero, Black Panther and Rhino 7 Platinum 3000.

46. Upon information and belief, HNJ ENTERPRISES, INC owns and operates

the retail location at 6601 Southwest Frwy, Houston, Texas 77074, which advertises and

offers for sale various sexual enhancement supplements, including Rhino 7 Platinum

5000, Super Panther 7K and Triple Green.

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 11 of 18

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47. Upon information and belief, DAHERI ENTERPRISES, INC. owns and

operates the retail location at 17049 KUYKENDAHL RD., HOUSTON, TEXAS 77068,

which advertises and offers for sale Black Mamba 2 Premium, Triple Green and Rhino 7

Platinum 3000.

48. Upon information and belief, STOP N GONE FOOD STORE INC owns and

operates the retail location at 6275 W AIRPORT BLVD., HOUSTON, TEXAS 77035,

which advertises and offers for sale various sexual enhancement supplements, including

Triple Green, CONTROL All Natural Sexual Enhancement, Super Panther 7K and Rhino

7 Platinum 3000.

49. Upon information and belief, CULLEN TEXACO, INC. owns and operates

the retail location at 7407 CULLEN BLVD., HOUSTON, TEXAS 77021, which

advertises and offers for sale various sexual enhancement supplements, including Rhino

5 1500 and Rhino 7 Platinum 5000.

50. Upon information and belief, IHU INC. owns and operates the retail

location at 7025 S LOOP E, HOUSTON, TEXAS 77087, which advertises and offers for

sale various sexual enhancement supplements, including Rhino 7 Platinum 5000, Super

Panther 7K and CONTROL All Natural Sexual Enhancement.

51. Upon information and belief, SUKHANI PETROLEUM, LLC owns and

operates the retail location at 8610 AIRPORT BLVD., HOUSTON, TEXAS 77061,

which advertises and offers for sale various sexual enhancement supplements, including

Super Panther 7K, Rhino 7 Platinum 3000, Rhino 7 Platinum 5000, Triple MiracleZen

Extreme 1750 mg, Libigrow XXX Treme, Stiff Nights and Mamba is Hero.

52. Upon information and belief, DAWANI STORES, INC., owns and operates

the retail location at 13350 ALMEDA RD., HOUSTON, TEXAS 77045, which

advertises and offers for sale various sexual enhancement supplements, including Mamba

is Hero, Triple Green, Black Mamba Premium, Rhino 11 Platinum 11000, Rhino 7

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Platinum 5000, Stiff Nights, Libigrow XXX Treme and CONTROL All Natural Sexual

Enhancement.

53. Upon information and belief, BROADVISION, LLC owns and operates the

retail location at 10707 W. LITTLE YORK RD., HOUSTON, TEXAS 77041, which

advertises and offers for sale various sexual enhancement supplements, including Rhino

7 Platinum 5000, CONTROL All Natural Sexual Enhancement, Triple Green, Stiff

Nights and Libigrow XXX Treme.

54. On information and belief, GESSNER TANNER TEXACO, INC., operates

the retail location at 5701 GESSNER DR., HOUSTON, TEXAS 77041, which advertises

and offers for sale various sexual enhancement supplements, including Rhino 7 Platinum

3000, Triple Green and Super Panther 7K.

55. Upon information and belief, ADICO ENTERPRISES INC. operates the

retail location at 9802 GULF FWY., HOUSTON, TEXAS 77034 which advertises and

offers for sale various sexual enhancement supplements, including Rhino 7 Platinum

3000 and Rhino 7 Platinum 5000.

56. Upon information and belief, SAFA PROPERTY INVESTMENT, INC

owns and operates the retail location at 10521 GULF FWY., HOUSTON, TEXAS

77034, which advertises and offers for sale various sexual enhancement supplements,

including Rhino 7 Platinum 5000, FX3000 and Super Panther 7K.

57. Upon information and belief, F & Z ENTERPRISES INC. owns and

operates the retail location at 14760 WALLISVILLE RD., HOUSTON, TEXAS 77049,

which advertises and offers for sale various sexual enhancement supplements, including

Super Panther 7K, Rhino 7 Platinum 3000, Triple Green and Mamba is Hero.

58. Upon information and belief, BELLFORT6920, LLC owns and operates the

retail location at 6920 BELLFORT ST., HOUSTON, TEXAS 77087, which advertises

and offers for sale various sexual enhancement supplements, including Super Panther 7K

and Rhino 7 Platinum 5000.

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Plaintiff’s Dietary Supplements: TriSteel and TriSteel 8hour

59. Plaintiff OLP is a manufacturer of DSHEA-compliant dietary supplements.

Plaintiff manufactures and offers for sale TriSteel and TriSteel 8hour, male sexual

performance enhancement supplements that promote increased sexual desire and

stamina. The ingredients in TriSteel are Epimedium Extract (leaves), Yohimbe Extract

(8mg Yohimbine Alkaloids), Xanthoparmelia Scarbrosa Extract (Lichen), Gamma

Amino Butyric Acid (GABA), L-Arginine, Gelatin, Cellulose, Magnesium Stearate and

Silica. Plaintiff sells TriSteel and TriSteel 8hour in all 50 states through its website, as

well as through many other online and storefront retail locations.

60. Natural products that work like TriSteel and TriSteel 8hour are significantly

more expensive to manufacture than the Illicit Products. Thus, Plaintiff is at a significant

commercial disadvantage when Defendants sell synthetic drugs that are much more

inexpensive to produce overseas, and falsely label them as being natural. Moreover, the

simple fact that the Illicit Products are sold “over-the-counter” gives the impression to

consumers that the Illicit Products are safe to consume. Defendants make significant

profits by disseminating false statements to the consuming public that would instead

purchase Plaintiffs directly competing products if Defendants were truthful about the

nature and origin of the Illicit Products.

CAUSE OF ACTION

(False Advertising in Violation of Section 43(a)(1)(B) of the Lanham Act)

61. Plaintiff incorporates the allegations contained in the foregoing paragraphs

as though fully set forth herein in their entirety.

62. Defendants advertise and offer for sale various sexual enhancement

supplements, including but not limited to, the Rhino Products.

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 14 of 18

COMPLAINT

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63. Defendants make numerous false and misleading representations regarding

the Rhino Products. For example, and without limitation, Defendants mislabel the Rhino

Products as “all natural” “dietary supplements” and advertise and promote such products

as containing “no chemicals,” “NATURAL FORMULA,” and “no prescription

necessary,” among other misrepresentations.

64. Contrary to Defendants’ representations, recent laboratory analyses by the

FDA and otherwise have confirmed that the Rhino Products unlawfully contain hidden

drug ingredients, such as sildenafil. Sildenafil is the active ingredient in the FDA-

approved prescription drug Viagra, which is used to treat erectile dysfunction. Thus, the

Rhino Products are not “dietary supplements” as a matter of law, and Defendants’

representations to the contrary are false and misleading for this reason alone.

65. Moreover, Defendants fail to disclose that the Rhino Products contain

prescription drug ingredients, such as sildenafil. The sale of products containing hidden

drug ingredients (without requiring a prescription and without informing consumers of

the health and safety risks of these drugs) is unlawful and seriously endangers

consumers. In this regard, Defendants also fail to disclose any of the adverse health

consequences of taking PDE-5 Inhibitors, such as sildenafil, tadalafil and vardenafil.

According to the FDA, these undisclosed ingredients may interact with nitrates found in

some prescription drugs such as nitroglycerin and may lower blood pressure to dangerous

levels, among other negative side effects.

66. Defendants have used, promoted, and disseminated the false advertising and

have thus materially participated in a false and misleading advertising campaign to

promote and sell their Rhino Products, giving consumers the false impression that these

products are “all-natural” “dietary supplements,” which do not require a prescription. In

reality, Defendants knew, or should have known, that their Rhino Products contain

hidden drug ingredients and actually require a proper prescription from a medical doctor.

Case 4:18-cv-02694 Document 1 Filed in TXSD on 08/06/18 Page 15 of 18

COMPLAINT

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67. The use of such falsely advertised products has the tendency to deceive a

substantial segment of the public and consumers, including those in Texas, into believing

that they are purchasing a product with drastically different characteristics.

68. The deception is material because it is likely to influence a consumer’s

purchasing decisions, especially if the consumer is concerned about the consequences of

taking certain prescription drugs without the supervision of a medical doctor.

69. Defendants have introduced their false and misleading statements into

interstate commerce via marketing and advertising at their stores and shipment of their

products containing false and misleading advertising into interstate commerce.

70. Plaintiff has been injured as a result of Defendants’ false and misleading

statements. Specifically, Defendants’ false and misleading advertising concerning the

Enhancement Products has negatively impacted Plaintiff’s sales of TriSteel and TriSteel

8hour because both products are intended for sexual performance enhancement and target

the same consumers. Thus, Plaintiff has suffered both an ascertainable economic loss of

money and reputational injury by the diversion of business from Plaintiff to Defendants

and the loss of goodwill in Plaintiff’s products. The ubiquity of the Enhancement

Products, their relatively low cost to manufacture in comparison to DSHEA-compliant

products (like TriSteel and TriSteel 8hour), and their dramatic pharmacologic effects

makes it so that legitimate sexual performance enhancement products, such as TriSteel or

TriSteel 8hour, struggle to obtain market share. Moreover, Defendants conduct has

created reputational damage in that Defendants’ misconduct damages the marketplace as

a whole and has the tendency to disparage Plaintiff’s products and goodwill.

71. Defendants’ actions, as described above, constitute false and misleading

descriptions and misrepresentations of fact in commerce that, in commercial advertising

and promotion, misrepresent the nature, characteristics, and qualities of their products in

violation of Section 43(a)(1)(B) of the Lanham Act.

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